Islamic Fiqh > Endowments (waqf) and property > Conditions for the validity of a waqf > The Conditions of the Waqf Formula
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Updated on 25 September 2026 at 6:57 PM
This part belongs to the section: All parts.
Several conditions are required of the waqf formula, among which are the following: immediacy of execution (the tanjiz), the absence of option, perpetuity (the ta'bid), and the mention of the waqf's destination.
First condition: immediacy of execution (at-tanjiz). The jurists differed over the formula: must immediacy be required of it, or is a formula suspended upon a condition valid? And is there a difference between suspending it during the endower's life and attaching it to after death? The majority of jurists, the Hanafis, the Shafi'is and the Hanbalis in the madhhab, require that the formula be executed immediately: suspending it upon a condition is not valid.
The Hanafis say: if one says "when tomorrow comes," or "when the beginning of the month comes," or "if I speak to so-and-so," or "if I marry such woman," and the like, then "this land of mine will be alms placed in waqf," the waqf is void: it is a suspension, and the waqf does not admit suspension upon contingency, being of what one does not swear by; it is therefore not suspended, like the gift. Unlike the vow, which admits suspension and by which one swears: whoever says "if I speak to so-and-so upon his arrival, or if I recover from this illness, this land of mine will be alms placed in waqf" must give it as alms as it is when the condition occurs, for this is like the vow and the oath. And if one says "this land is alms placed in waqf on condition that I keep its corpus, or that my ownership of its corpus not cease, or that I sell its corpus and give its price as alms," the waqf is void; likewise "it is alms placed in waqf if I wish, if I love, or as I desire": void, for this is suspending the waqf upon a condition, and its suspension is void in their view. If one says "if this land is in my ownership it is alms placed in waqf," it is examined: if it was in his ownership at the time of speaking, the waqf is valid, otherwise not, for suspension by an existing condition is execution; and if he suspends the waqf of the land upon buying it and then buys it, it does not become a waqf, unlike suspending manumission upon acceptance or refusal (Ahkam al-Waqf, 154-155 ; Al-Ishaf, p. 30 ; Sharh Fath al-Qadir, 6/208 ; Al-Bahr ar-Ra'iq, 5/203, 208 ; Ibn Abidin, 4/341 ; Majma' al-Anhar, 2/571 ; Al-Fatawa al-Hindiyyah, 3/355).
The Shafi'is say: the waqf must be immediate: suspending the waqf is neither lawful nor valid in what does not resemble manumission, as in "when Zayd comes I shall have made a waqf of such property for such purpose," for it is a contract requiring the transfer of ownership at once, to Allah (exalted is He) or to the beneficiary immediately, and it was not built upon predominance and transmission: its suspension upon a condition is therefore not valid, like sale and gift. As for what resembles manumission, such as "I make it a mosque when Ramadan comes," that is valid (Mughni al-Muhtaj, 3/466 ; Nihayat al-Muhtaj, 5/430 ; Kanz ar-Raghibin with the hashiyah of Qalyubi and Umayrah, 3/252 ; An-Najm al-Wahaj, 5/487 ; Ad-Dibaj, 2/524). The Hanbalis in the madhhab say: the waqf must be immediate, neither suspended, nor dated, nor with an option in it: suspending the waqf is therefore not valid, whether the suspension concerns its beginning, as in "when Zayd comes, or a son is born to me, this is a waqf for such purpose, or when Ramadan comes this is a waqf for so-and-so" and the like, or its end, as in "my house is a waqf for Zayd until Amr arrives, or a son is born to me" and the like, for it is a transfer of ownership not built upon predominance and transmission: its suspension upon a condition during life is therefore not permitted, like the gift (Ash-Sharh al-Kabir, 6/198-199 ; Al-Mubdi', 5/323 ; Al-Insaf, 7/23 ; Sharh Muntaha al-Iradat, 4/343 ; Kashshaf al-Qina', 4/304-305 ; Ar-Rawd al-Murbi', 2/172 ; Matalib Uli an-Nuha, 4/292 ; Manar as-Sabil, 2/327).
These three schools, denying the validity of suspending the waqf, excepted from that the suspension by death: if he suspends it to it, saying "I have made a waqf of my house after my death for the poor," it is valid, as a waqf or bequest according to their disagreement, for it is a donation suspended to death, like "set my house in waqf for such purpose after my death." Imam Ahmad argued by the testament of Umar (may Allah be pleased with him), who said: "This is what Abdallah Umar, commander of the faithful, bequeathed, should the event of death befall him: Thamgh (his property in Medina) is alms," and the rest of the report; this waqf took place at the Prophet's command (peace and blessings be upon him), became famous among the Companions and was not denied: it was therefore a consensus, differing from suspension upon a condition during life, for this is a bequest, wider than disposal during life, as shown by its validity for the indefinite, the nonexistent and the like. The ruling of the waqf suspended to death is that of the bequest from the third of his property: if it is of the value of the third or less it binds; if it exceeds the third, its bindingness in the excess is suspended upon the heirs' approval.
The Hanbalis say: the waqf suspended to death binds from the moment of its issuance from him. Ibn Qudamah (may Allah have mercy on him) said: a question: whoever makes a waqf in the illness that kills him, or says "it is a waqf after my death," and it does not come out of the third, it is halted from him to the measure of the third, unless the heirs approve it. In sum: the waqf in mortal illness stands as the bequest in being counted from the third of the property, for it is a donation, and the donation of the sick person stands as the bequest attached to after death, counted therefore from the third, like manumission and the gift. Once it comes out of the third it is valid without the heirs' consent and binds; what exceeds the third: the waqf binds from it to the measure of the third, the excess being halted upon the heirs' approval; we know of no disagreement in this among those who hold the waqf binding, for the heirs' right attached to the property with the illness, and donation beyond the third is therefore prevented, like gifts and manumissions. As for his saying "it is a waqf after my death," the apparent of al-Khirqi's words is that it is valid and counted from the third like the other bequests, and this is the apparent of Imam Ahmad's words. The qadi (al-Maqdisi) said: this is not valid, for it is a suspension of the waqf upon a condition, and suspending the waqf upon a condition is not permitted, as if he suspended it upon a condition during his life; al-Khirqi's words are to be understood as his having said "set it in waqf after my death," making it a bequest of waqf, not a waqf. Abu al-Khattab said: this word of al-Khirqi indicates the permissibility of suspending the waqf upon a condition. Our reply: the validity of the waqf suspended to death rests upon what Ahmad (may Allah be pleased with him) argued: Umar's bequest "This is what Abdallah Umar, commander of the faithful, bequeathed should an event befall him: Thamgh is alms," reported by Abu Dawud in similar terms: this is an explicit text on our question; his waqf took place at the Prophet's command (peace and blessings be upon him), became famous among the Companions and was not denied, so it was a consensus; and because this is a donation suspended to death, it is valid like the absolute gift and alms, or one says "alms suspended to death," which then resembles other than the waqf; and this differs from suspension upon a condition during life, as shown by the absolute gift and alms and others, for this is a bequest, and the bequest is wider than disposal during life, as shown by its validity for the indefinite, the nonexistent, the fetus and other things. Hereby appears the falsity of the analogy of whoever analogized the remaining conditions upon this condition (Al-Mughni, 5/365-366 ; Ash-Sharh al-Kabir, 6/198-199 ; Al-Mubdi', 5/323 ; Al-Insaf, 7/23 ; Al-'Uqud of Ibn Taymiyyah, p. 301).
The Shafi'is hold it like a bequest, the endower having the right of return in it. Shams ad-Din ar-Ramli (may Allah have mercy on him) said: if he suspends it to death, as in "I have made a waqf of my house after my death for the poor," it is valid, said by the two shaykhs; it is as it were a bequest, per al-Qaffal's words: offering it for sale would be a return; it is distinguished from tadbir in that the right attached to it, manumission, being stronger, return from it is permitted only by a way like sale, not by offering it for sale. Az-Zarkashi reported from the qadi that if he executed it immediately and suspended its delivery to the beneficiary to his death, it is valid, like agency: it is therefore like a bequest too, to the apparent (Nihayat al-Muhtaj, 5/430 ; see Mughni al-Muhtaj, 3/466 ; Kanz ar-Raghibin, 3/252 ; An-Najm al-Wahaj, 5/487 ; Ad-Dibaj, 2/524). The Hanafis said: it is not valid for the waqf to be attached to after death: Muhammad stated explicitly in As-Siyar al-Kabir that attached to after death it is void according to Abu Hanifah; yet it becomes a binding bequest of the third upon death, not before it. If one says "when I die, make it a waqf," that is permitted, for it is the suspension of delegation, not of the waqf itself. Ibn Nujaym the Hanafi (may Allah have mercy on him) said: in sum, if he suspends it to his death, as in "when I die I shall have made a waqf of my house for such purpose," the sound view is that it is a binding bequest, but which has not left his ownership: no disposal of it by sale or the like after his death is conceivable, since that would nullify the bequest; and he may return from it before his death, like the other bequests. It is not a waqf for the reason we gave: it does not admit suspension by condition. Likewise if he says "if I die of this illness I shall have made a waqf of my land for such purpose" and then dies, it does not become a waqf, and he may sell it before death. Unlike "when I die, make it a waqf," which is permitted, for it is the suspension of delegation, not of the waqf itself, the waqf being the like of transferring the gift, and transfer other than bequest does not attach to contingency. In Al-Muhit: if he says "if I die of this illness I shall have made a waqf of this land," the waqf is not valid, whether he recovers or dies, for it is a suspension. In Al-Khaniyyah: if he says "my land is mawqufah for a year after my death," it is permitted and the land becomes a waqf in perpetuity, for it is in the meaning of the bequest, unlike if he does not attach it to after death, saying "my land is mawqufah for a year": that is not a bequest but pure suspension or attachment; in sum, according to Hilal's view, if he stipulates in the waqf a condition preventing perpetuity, the waqf is not valid. In At-Tibyin: if he suspends the waqf to his death and then dies, it is valid and binds if it comes out of the third, for the bequest of the nonexistent is permitted like the bequest of benefits, and the endower's ownership remains in it in law so that he gives alms of it continually; if it does not come out of the third, it is permitted to the measure of the third and the rest remains until property appears for him or the heirs approve; if no property appears and the heirs do not approve, the yield is divided into thirds between them: his third for the waqf and his two thirds for the heirs (Al-Bahr ar-Ra'iq, 5/208 ; Ibn Abidin, 4/341 ; Majma' al-Anhar, 2/571 ; Al-Jawharah an-Nadirah, 4/98).
The Malikis and the Hanbalis according to one view (the choice of shaykh al-islam Ibn Taymiyyah) hold: suspending the waqf upon a condition is valid, immediacy not being required at the moment of its conclusion: it is valid even if dated, like manumission for a term. If one says "when such day, month or year comes, my house, for instance, is a waqf for such purpose," it binds when that term comes, as when one says to his slave "you are free until such term": he becomes free when the term he fixed arrives, and there is no hesitation over the contract's bindingness in respect of both when the term arrives. Should a debt befall the endower or the freed one in that term, it does not harm the contract of manumission, for the Lawmaker looks to freedom; it harms the contract of habous if the property was not taken from the endower in that term; if it was taken, or its benefit belonged to another in that term, the occurrence of the debt does not harm, as if one leased the house in that term and the lessee took it, or made its benefit another's, who stored his goods in it, key in hand (Ash-Sharh al-Kabir with the hashiyah of ad-Dasuqi, 5/473-474 ; Mawahib al-Jalil, 7/492 ; At-Taj wal-Iklil, 4/576 ; Sharh Mukhtasar Khalil, 7/91 ; Tahbir al-Mukhtasar, 4/653 ; Hashiyat as-Sawi, 9/139 ; Al-Insaf, 7/23). Al-Qadi Abdal-Wahhab (may Allah have mercy on him) said: the waqf in health is from the whole capital, in illness or bequest from the third; for in health no interdiction attaches to his property from anyone, neither heir nor other, so his gifts and presents are from the whole capital.
The majority of jurists holds that the option cannot validly be stipulated in the waqf. Ibn Nujaym (may Allah have mercy on him) said: the option of stipulation does not attach to the waqf: whoever places it in waqf upon the option, it is not valid according to Muhammad, whether the term be known or unknown, and Hilal chose this. Abu Yusuf said: if the term is known, the waqf and the condition are valid, as in sale; otherwise the waqf is void. As-Samti validated it absolutely and nullified the condition. The apparent of Al-Khaniyyah is that if he made his house a mosque upon the option, the waqf is valid and the condition void without disagreement. Al-Faqih Abu Ja'far said: upon Abu Yusuf's view, when the term is unknown, the waqf should be valid and the condition void (Al-Bahr ar-Ra'iq, 5/203-204 ; Ahkam al-Waqf of Hilal ar-Ray, 149, 161). Al-Babarti (may Allah have mercy on him) said: if the endower stipulated the option for himself in the waqf for three days, the waqf and the option are permitted according to Abu Yusuf, upon the basis of the latitude already mentioned, while the waqf is void according to Muhammad; its being restricted to "three days" is to make the duration of the option known: were it unknown, the waqf upon the option would not be permitted even according to Abu Yusuf. And his words "this, that is, the disagreement, is upon the basis of what we mentioned" hint that making the waqf's yield for oneself is permitted according to Abu Yusuf: since the endower may except the yield for himself so long as he lives, so likewise may he stipulate the option for himself for three days to examine the property; according to Muhammad, that not being permitted, stipulating the option for himself is not permitted either: and upon this basis he declared it in Al-Mabsut. Then, the waqf with the condition of option not being valid according to Muhammad, the waqf does not revert to validity by annulling the option afterwards, for the waqf is only permitted in perpetuity, and the condition of option prevents perpetuity: the condition of option was thus a corrupting condition within the contract itself, the corrupter being the stronger (Al-'Inayah, 8/352 ; Al-Hidayah, 3/18).
As for the Malikis, ad-Dasuqi (may Allah have mercy on him) saying it: the waqf binds even without being taken, so if the endower wishes to return to it he is prevented, and if it was not taken from him he is compelled to remove it from his hand to the beneficiary. Know that it binds even if the endower says "the option is mine," as Ibn al-Hajib said, and Ibn Abdas-Salam discussed it, that the condition must be fulfilled for him, as they said the condition is fulfilled for one who stipulated that if a judge usurped it from him he would return to it, and that whoever among the beneficiaries is in need sells and the like (Hashiyat ad-Dasuqi with Ash-Sharh al-Kabir, 5/455).
The Shafi'is say: if one placed something in waqf with the condition of option for himself, in keeping his waqf and returning to it whenever he wishes, or stipulated the option for another, or stipulated his return to it in some way, as if he stipulated that he sell it, or that he bring in whom he wishes and expel whom he wishes, or change something in it by removal or addition and the like: it is void upon the apparent, like sale and gift, for what the waqf requires is bindingness, and the option contradicts it: it is corrupted by this condition. Against the sound view: the waqf is valid and the condition annulled, as when one divorces without right of return, and as in the hadith of the umrah, in which the Prophet (peace and blessings be upon him) said:
Keep your property to yourselves and do not corrupt it: whoever grants an umrah, it belongs to the one for whom it was granted, living or dead, and to his posterity.Reported by Muslim (1625)The Prophet (peace and blessings be upon him) made it belong to the one granted it in his lifetime and to his heirs after his death, removing the grantor's ownership and annulling his condition. The place of the two views is where no ruler has ruled the waqf valid: if he has ruled, it is valid without disagreement and proceeds. As for one who placed something in waqf and stipulated for himself to deprive whom he wishes and add whom he wishes, to advance or delay: the condition is corrupting according to the most correct view if he created the waqf with this condition; if he made it unrestricted then wished to alter what he mentioned by deprivation, addition, advancement or delay, that is not his categorically (Mughni al-Muhtaj, 3/467 ; Nihayat al-Muhtaj, 5/431 ; An-Najm al-Wahaj, 5/487-488 ; Ad-Dibaj, 2/524).
Ibn Qudamah (may Allah have mercy on him) said: if he stipulated that he might sell the waqf whenever he wishes, or give it away, or return to it, neither the condition nor the waqf is valid, and we know of no disagreement in it, for it contradicts what the waqf requires. It is possible that the condition be corrupted and the waqf valid, upon the basis of the corrupting conditions in sale. And if he stipulated the option in the waqf, it is corrupted: Ahmad stated it explicitly, and ash-Shafi'i said so. Abu Yusuf, in a transmission reported from him, said it is valid, for the waqf is a transfer of benefits: the option is therefore permitted in it, as in lease. Our reply: it is a condition contradicting what the contract requires: it is therefore not valid, as if he stipulated its sale whenever he wishes, for that would be removing Allah's ownership (exalted is He), the option not being valid in it, like manumission; and because it is not a contract of exchange, the option is not valid in it, like the gift; and it differs from lease, which is a contract of exchange and a kind of sale, for the option, entering the contract, prevents the establishment of its ruling before the option's lapse or the disposal; whereas here, were the option established, it would be established with the establishment of the waqf's ruling without preventing disposal: the two thus part.
Chapter: if he stipulated in the waqf that he might expel whom he wishes of the waqf's people and bring in whom he wishes from outside, it is not valid, for it is a condition contradicting what the waqf requires: it corrupts it, as if he stipulated that they not benefit from it. If he stipulated for the overseer that he give whom he wishes of the waqf's people and deprive whom he wishes, it is permitted, for that is not an expulsion of the beneficiary from the waqf: he only suspended his entitlement upon a quality, as if he gave him a right in the waqf when the trustee's will of giving to him attaches to it, and no right when that quality ceases in him: it resembles one who placed in waqf for his children occupied in learning: only the one who studies is entitled among them; if the student leaves his studies, the entitlement ceases, and when he returns it returns. And Allah knows best (Al-Mughni, 5/353).
The jurists differed over the waqf: is perpetuity required in it, or is it permitted to date it by a term and then return it to the endower's ownership? And what is the ruling of the dated waqf: does it remain valid despite the corruption of the dating, or is it void through the corruption of the formula? The majority of jurists, the Hanafis, the Shafi'is and the Hanbalis in the madhhab, require of the waqf perpetuity: that he make its end for a purpose that never lapses, for the aim of the waqf is perpetuity, like manumission. This is like his words "I have made this land of mine alms placed in waqf for the children of so-and-so so long as they succeed one another, and when they are extinct its yield is for the needy," for the trace of the needy never lapses; if he does not say that, it is not valid, for the waqfs of the forebears were all, in principle, waqfs of absolute finality, and their conditions were that they be neither sold, given away nor bequeathed, intending thereby that they have no return: whatever of the waqf accords with their waqfs, without a twofold exception (that is, a clause), is therefore permitted; what contains the return is not permitted, for it would be against their waqfs.
Abu Hanifah and Muhammad said: the waqf is not complete until he makes its end for a purpose that never lapses, such as the needy, the interests of the Haram and the mosques, unlike one who places it in waqf for a particular mosque without making its end a purpose that never lapses: not valid, for the ruin of the beneficiary is possible; the aim of the waqf being perpetuity, like manumission. This is like the words cited, and without them it is not valid: the condition of its lawfulness with the two is that it be perpetual; if he designates a purpose that lapses, it becomes temporary in meaning: it is therefore not permitted, the ruling of the waqf being the leaving of ownership without transfer and its being perpetual like manumission: dating it thus invalidates it, like dating in sale.
Abu Yusuf said: if he names a purpose that lapses, it is permitted and it then goes to the poor; if he does not name them, it becomes a perpetual waqf even without mentioning perpetuity, for the word of waqf and alms is built upon it: it is directed to the purpose he named for the duration of its existence, then directed to the poor after it even without naming them. Such as saying "I have made it alms placed in waqf for Allah (exalted is He) forever, for the child of so-and-so and his child's child," without mentioning the poor or the needy: for his making it Allah's, he has made it perpetual: what is Allah's turns to the needy, so it is as if he mentioned them; and because its aim is drawing near to Allah through it, which is obtained through a purpose that lapses as through one that does not, then it goes to the poor afterwards. It has also been said: perpetuity is a condition by consensus, except that with Abu Yusuf its mention is not required, for the word of waqf and alms announces it, it being a removal of ownership without transfer, like manumission, and it then goes to the poor even without naming them: this is the sound view; with Muhammad, mentioning perpetuity is a condition, for this is alms of the benefit or the yield, which may be temporary or perpetual: its unrestricted form does not therefore turn to perpetuity, and explicit mention of it is necessary (Sharh Fath al-Qadir, 6/213 ; Al-'Inayah Sharh al-Hidayah, 8/331-332 ; Al-Jawharah an-Nadirah, 4/101 ; Al-Lubab, 1/621 ; Al-Bahr ar-Ra'iq, 5/204, 212 ; Ibn Abidin, 4/141).
Hilal ar-Ray (may Allah have mercy on him) reports this dialogue: "What do you say of a man who says: my land is alms placed in waqf for a month? He said: the waqf is sound and permitted, and it is mawqufah in perpetuity. I said: and likewise if he said 'for a day'? He said: yes. I said: then when that day has passed? He said: it is a waqf in perpetuity that day and after it in perpetuity. I said: what do you say if he says: this land of mine is alms placed in waqf for Allah (exalted is He) forever, for a month, and when that month has passed it is unrestricted? He said: the waqf is void, not permitted. I said: why do you say that? He said: because when he said 'mawqufah for a month' he stipulated nothing after the month: not having stipulated that, it was mawqufah in perpetuity, like his saying 'alms placed in waqf for so-and-so' without more: when so-and-so dies it is for the needy, mawqufah in perpetuity. But if he says 'alms placed in waqf for a month, and when that month has passed it is unrestricted,' the waqf is void, not permitted, for he stipulated the return in it, whereas in the first case he did not stipulate return after the term's passing; not having stipulated return in it, it is as if he said 'alms placed in waqf' and fell silent" (Ahkam al-Waqf, 151-152).
In Al-Ishaf: the third condition: mentioning perpetuity or its equivalent, such as alms and the like: a condition according to Muhammad (may Allah have mercy on him), not a condition according to Abu Yusuf (may Allah have mercy on him). If he says "I have made a waqf of this land of mine," or "I made it mawqufah," without more, it is permitted with him and it becomes a waqf for the poor, and the shaykhs of Balkh gave fatwa with it, upon it being the fatwa: his words "I made a waqf" require its removal to Allah (exalted is He) then to His deputy, the poor, which requires perpetuity: there is thus no need to mention it, like manumission; with Muhammad it is not permitted, for what necessitates it is the leaving of ownership without transfer, which is by perpetuity, like manumission: without perpetuity its cause is not gathered, wherefore dating invalidates it as it invalidates sale. If one says "I have made a waqf of this land of mine for the maintenance of the mosque of so-and-so," it is permitted with Abu Yusuf, for were he not to say more than "I made a waqf," it would be permitted with him: how much more when he designates a purpose; but it is not permitted with Muhammad, for the ruin of its surroundings is possible, so it would not be perpetual. From Abu Bakr al-A'mash: it ought to be permitted by consensus, the waqf for the mosque's maintenance being like making the land a mosque or like an addition to the mosque. Al-Faqih Abu Ja'far said: this view is more correct to me. Abu Bakr al-Iskaf said: it ought not to be valid with anyone, for the waqf for the mosque is a waqf for its maintenance, and the mosque is a mosque without building: the maintenance of the building is thus not of what becomes perpetual, so the waqf is not valid. The first is more plausible.
If one says "I have made a waqf of this land of mine for my children, my children's children and their descendants forever," it is valid according to Abu Yusuf, the yield going to the poor when they become extinct; it is not valid according to Muhammad, for interruption is possible. If one says "I have made a waqf of this land of mine for Zayd's child," or named a group by name, it is not valid even according to Abu Yusuf, for designating the beneficiary prevents intending other than it, unlike not designating, which makes it a waqf for the poor. Do you not see the difference between "this land of mine is mawqufah" and "mawqufah for my child"? He validated the first, not the second, for the unrestricted "mawqufah" turns to the poor by custom: when he mentioned the child it became restricted, so the custom no longer remains. It is hereby apparent that their disagreement over requiring the mention of perpetuity or not is only over stating it explicitly or stating its equivalent, such as the poor and the like; as for perpetuity in meaning, it is a condition by consensus upon the sound view, stated explicitly by the verifying shaykhs (may Allah have mercy on them) (Al-Ishaf, 16-17).
The Shafi'is say: perpetuity is required of the waqf: that it be upon those who do not become extinct, such as the poor and needy, or upon those who become extinct, then upon those who do not, like his saying "I placed it in waqf for my children then for the poor, or for Zayd then his posterity then the poor." If the endower says "I placed this in waqf for the poor, or for such, for a year," for instance, this waqf is void for the corruption of the formula, its being set upon perpetuity, whether the term be long or short; if he follows it with a destination, "I made it a waqf for Zayd for a year, then for the poor," it is valid without disagreement, and the endower's condition is respected. This is for what does not resemble manumission: what resembles it, like the mosque, the graveyard and the ribat, as in "I made it a mosque for a year," is valid in perpetuity (Al-Iqna', 2/362 ; Mughni al-Muhtaj, 3/464 ; Nihayat al-Muhtaj, 5/428 ; An-Najm al-Wahaj, 5/482 ; Ad-Dibaj, 2/522). The Hanbalis in the madhhab say: perpetuity is required of the waqf: "I made it a waqf until such year" is not valid, nor "until the day the pilgrim arrives" and the like (that is, such as the mentioned forms in which the waqf is dated): not valid, for what it requires is perpetuity, and dating contradicts it. If he says "I made my house, for instance, a waqf for my children for a year or the length of my life, then for the poor," the waqf is valid, its inception and end being connected; likewise if he made it a waqf for his son for a year, then for Zayd for a year, then for Amr for a year, then for the needy. If he says "I made a waqf for the poor, then for my children," it is valid for the poor alone, for the "then" indicates sequence: it is not directed to his children except after the poor's extinction, and habit does not run with their extinction (see Ash-Sharh al-Kabir, 6/206 ; Kashshaf al-Qina', 4/309 ; Sharh Muntaha al-Iradat, 4/344 ; Al-Mubdi', 5/328 ; Al-Insaf, 7/35 ; Ar-Rawd al-Murbi', 2/172 ; Manar as-Sabil, 2/327).
The Malikis and Ibn Suryaj of the Shafi'is hold: perpetuity is not required of the waqf; rather it is valid to place a thing in waqf for the duration of a year, for instance, then make it thereafter ownership for himself or another. All disposal is permitted in it by which disposal is permitted in other than the property in waqf. Whoever says "my house is a habous for my posterity and it is ownership for the last of them," it is for the last of them; and whoever says "upon condition that whoever of them is in need sells," or "that the corpus retained as habous becomes ownership of the last of them," it is valid and the condition followed. It is not required that he own the corpus of the waqf; rather the waqf of the corpus and the waqf of the benefit are permitted, by his leasing land or a house for years to make it a mosque, the waqf ending with the end of the term, perpetuity not being required in it (Ash-Sharh al-Kabir with the hashiyah of ad-Dasuqi, 5/474-475 ; Sharh Mukhtasar Khalil, 7/91 ; Al-Fawakih ad-Dawani, 2/162 ; Minhaj al-Jalil, 8/145 ; Tahbir al-Mukhtasar, 4/641, 653 ; Hashiyat as-Sawi on Ash-Sharh as-Saghir, 9/139 ; An-Najm al-Wahaj, 5/482). The Hanbalis according to one view hold: the waqf is valid and directed, after the year or the term, to a purpose with final interruption, such as the poor and needy. Ibn Muflih said in Al-Mubdi': if he says "I made my house a waqf for a year," it is not valid, for what the waqf requires is perpetuity and this contradicts it; if he says "I made this a waqf for my son for a year, then for the needy," it is valid, or it is possible that it be valid, for it is of final interruption: we explained its validity, and it is then directed after it (that is, after the year) to the destination of the interrupted, meaning of final interruption. And according to a third view of the Shafi'is: the dating is annulled and the waqf is valid in perpetuity, close to the preceding Hanbali view. And according to a fourth view of the Shafi'is: the waqf in which acceptance is not required (such as for the poor, the mosques and the ribat) is not corrupted by dating, while that in which acceptance is required (like the waqf for a person or a determined group) is corrupted by it (An-Najm al-Wahaj, 5/482).
The principle in the waqf is that the endower mention its destination. If the endower says "I made a waqf" and falls silent without mentioning its destination, the jurists differed: is the waqf valid and binding, or must the purpose to which the waqf will be directed be mentioned? The majority of jurists, Abu Yusuf of the Hanafis (the fatwa resting upon him), the Malikis, the Hanbalis and the Shafi'is against the apparent view (chosen by ash-Shaykh Abu Hamid, author of Al-Muhadhdhab, ar-Ruyani, with the leaning of as-Subki), hold: mentioning the purpose is not required: if he says "I made a waqf" and falls silent, the waqf is valid and is thereafter directed to the poor and needy in the absence of custom, as when one vows an offering or alms without specifying the destination; and because it is a removal of ownership for nearness to Allah, like the offering of sacrifice; and because the owner is Allah (exalted is He); and by the hadith of Abu Talhah and Abu d-Dahdah (may Allah be pleased with both of them); and as when one says "I bequeathed my third," which is valid and directed to the needy.
The Malikis say: designating the destination in its place is not required of the waqf: it is permitted to say "I placed it in waqf for Allah (exalted is He)" without designating for whom it is directed; it binds by this and its yield is directed, if the appeal of the consecrator is dominant in their customary usage, to the people of knowledge or recitation; if he is not dominant in their usage, it is directed to the poor (Ash-Sharh al-Kabir with the hashiyah of ad-Dasuqi, 5/474 ; Sharh Mukhtasar Khalil, 7/91 ; Al-Fawakih ad-Dawani, 2/162 ; Minhaj al-Jalil, 8/145 ; Tahbir al-Mukhtasar, 4/641, 653 ; Hashiyat as-Sawi, 9/139). Ash-Shirazi the Shafi'i (may Allah have mercy on him) said: if he made a waqf unrestricted and did not mention its way, there are two views: the first, that the waqf is void, for it is a transfer: it is thus not valid unrestrictedly, as in "I sold my house" or "I gave away my property" without a recipient. The second: it is valid, and it is the sound view, for it is a removal of ownership for nearness to Allah: it is thus valid unrestrictedly, like the offering of sacrifice; its ruling is then that of the waqf of connected inception and interrupted end, which we explained (Al-Muhadhdhab, 1/442).
As for the Hanbalis, Ibn Qudamah (may Allah have mercy on him) said: if he said "I made this a waqf" and fell silent, or said "alms placed in waqf" without mentioning its way, no explicit text bears upon it. Ibn Hamid said: the waqf is valid. The qadi said: it is the measure of Ahmad's words, for he said, concerning the unrestricted vow, that it is concluded obligating expiation of an oath: this is Malik's view and ash-Shafi'i's in one of his two views, for it is a removal of ownership for nearness to Allah: its unrestricted form must therefore be valid, like the offering and the bequest. If he said "I bequeathed a third of my property," it is valid; and valid, it is directed to the destinations of the waqf of interrupted end after the beneficiary's extinction (Al-Mughni, 5/364 ; see Ash-Sharh al-Kabir, 6/202). Al-Mardawi (may Allah have mercy on him) said: its ruling is that of the waqf of interrupted end in its destination according to the sound view of the madhhab, as the author said here; the qadi pronounced it in Al-Mujarrad, as did Ibn Aqil, and the author of At-Talkhis and others chose it; he pronounced it in Ar-Ri'ayah as-Sughra, Al-Hawi as-Saghir and Al-Wajiz and others, and put it first in Al-Furu' and Ar-Ri'ayah al-Kubra, saying: it is stated explicitly. The qadi and his companions said: it is directed to the ways of righteousness. Al-Harithi said: the second view: it is directed to the ways of righteousness and good; the qadi pronounced it in Ta'liq al-Kabir and Al-Jami' as-Saghir, as did Abu Ali ibn Shihab and Abu al-Khattab in Al-Khilaf as-Saghir, the two sharifs Abu Ja'far and az-Zaydi, Abu al-Husayn the qadi, and al-'Ukbari among others. In the wording of some: "it belongs to the community of the Muslims." In some of it: "it is directed to the interests of the Muslims," the meaning being one. In 'Uyun al-Masa'il, on this question: upon his words "tasaddaqtu" (I gave alms), it belongs to the community of the Muslims. Ibn Hubayrah (may Allah have mercy on him) said: they differed over one who places a place in waqf unrestrictedly without designating a purpose: Malik and Ahmad said: valid and directed to righteousness and good; ash-Shafi'i said: it is void upon the apparent of his two views (Al-Ifsah, 2/50).
The Shafi'is upon the apparent view (which is Abu Hanifah's and Muhammad's, as will come) hold: clarifying the destination is required: if he says "I made such a waqf" and confines himself to it without mentioning its destination, the waqf is void, even if he says "for Allah (exalted is He)," for the waqf requires transfer: not designating the owner, it is void, as in "I sold my house for ten," or "I gave it away," without saying to whom. And because if he said "I made a waqf for a group," it is not valid for the destination being unknown: how much more so without mentioning the destination. The second view: it is valid, the leaning of ash-Shaykh Abu Hamid, chosen by the author of Al-Muhadhdhab, ar-Ruyani, with the leaning of as-Subki, as when one vows an offering or alms without specifying the destination, and because it is a removal of ownership for nearness to Allah, like the offering, and because the owner is Allah, and by the hadith of Abu Talhah and Abu d-Dahdah (may Allah be pleased with both of them), and as when one says "I bequeathed my third," which is valid and directed to the needy. An-Nawawi (may Allah have mercy on him) said: if this hadith is agreed upon, the difference is problematic. I say: the difference is that most bequests are to the needy: the unrestricted is therefore carried to it, unlike the waqf; and because the bequest is built upon indulgence: it is thus valid for the indefinite, the impure and the like, unlike the waqf; and Allah knows best (Rawdat at-Talibin, 4/148-149). Upon the view of validity, its destination is disputed in the waqf of interrupted end: the most correct is that it be the people nearest to the endower. From Ibn Suryaj: the overseer directs it to what he sees of righteousness, such as maintaining the mosques, the bridges, fortifying the frontiers, shrouding the dead and other things. Al-Khatib ash-Shirbini (may Allah have mercy on him) said: if he specified the destination generally, as in "I made this a waqf for such mosque," it suffices and it is directed to its interests upon the majority view; al-Qaffal said: it is not valid without specifying the purpose, saying "for its maintenance" and the like (Mughni al-Muhtaj, 3/466 ; Nihayat al-Muhtaj, 5 ; Kanz ar-Raghibin, 3/252 ; An-Najm al-Wahaj, 5/486 ; Ad-Dibaj, 2/524).
The Hanafis say, in Al-Ishaf: if he said "this land of mine is alms placed in waqf," or "a waqf," without more, it is not permitted according to the generality of those who validate the waqf. Hilal (may Allah have mercy on him) said: because the waqf may be for the rich and the poor and he did not name which of them: therefore I invalidated it. It becomes like "my land is mahbusah (retained)" without more: it does not become a waqf; and because land may be placed in waqf for debt and bequests and for the habous of the corpus, this is a waqf whose way and purposes were not named, its yield not given as alms: it has therefore left what the Prophet (peace and blessings be upon him) commanded Umar ibn al-Khattab (may Allah be pleased with him), for he only mentioned the habous of the corpus, not the alms, according to what Umar was commanded: therefore I invalidated it until the two words combine, the alms and the habous: when they combine, the waqf is permitted. Abu Yusuf (may Allah have mercy on him) said: it is permitted and becomes a waqf for the needy, its unrestricted form turning to them by custom. If one says "this land of mine is alms placed in waqf, or mawqufah alms," without more, it is permitted according to Abu Yusuf, Muhammad and Hilal ar-Ray (may Allah have mercy on them), and it becomes a waqf for the poor. Yusuf ibn Khalid as-Samti (may Allah have mercy on him) said: it is not permitted unless he adds "and its end for the poor forever." The sound view is that of our companions, for the place of alms at the root is the poor: their mention is thus not needed, and they do not lapse: the mention of "forever" is thus not needed either. If one says "this land of mine is alms made inviolable," it is permitted, being like his saying "mawqufah alms," for the inviolable stands as "mawqufah" in the language of the people of Medina. If one says "I consecrated this land of mine by habous," or "this land of mine is a habous," it is not a waqf in their view; if he says "I made this land inviolable," or "this land of mine is habis (consecrated)," or "it is inviolable," al-Faqih Abu Ja'far said: with Abu Yusuf this is like "mawqufah". "Habis mawquf," or "habis waqf," is void; Hilal said: in our view and Abu Hanifah's, the meaning of "waqf" and the meaning of "habis" are the same: it is as if he said "my land is a waqf," and this is void, not permitted in our view. Likewise "it is inviolable habis," or "habis inviolable": not permitted, for he mentioned the habous of the corpus without naming to whom the yield goes: therefore I invalidated it. "Mawqufah habis inviolable, neither sold, given away nor bequeathed," without more: not permitted, unless he places in it the meaning of alms or the needy together with the habous of the corpus: that is permitted with us. "Habis alms," or "alms habis": Hilal said: this is permitted, and al-Faqih Abu Ja'far said: this ought to be like his saying "alms placed in waqf". "It is mawqufah for Allah (exalted is He) forever": permitted even without mentioning alms, and it becomes a waqf for the poor, for his words "mawqufah for Allah forever" show that he meant the needy by it: it contains nearness to Allah through "for Allah (exalted is He)," and it left being mawqufah for debt by "for Allah forever"; likewise "alms placed in waqf for the needy" without "forever," or "mawqufah for the way of Allah," or "mawqufah for the reward of Allah".
If he bequeathed that a third of his land be placed in waqf after his death for Allah (exalted is He) forever, it will be a bequest of waqf for the poor. If he said "this land of mine is alms placed in waqf for so-and-so," it is valid, and it is reckoned as "alms placed in waqf for the poor," for the place of alms is the poor, its yield going to so-and-so so long as he lives. Likewise "alms placed in waqf for Zayd forever," or "for my child forever," for it is valid without "forever": with its mention, more fittingly. It is not valid according to Yusuf ibn Khalid as-Samti even with "forever," for adding the word "forever" to the alms for Zayd or his child is inoperative: it not becoming perpetual, the word lapses. Hilal ar-Ray (may Allah have mercy on him) reported that Abu Hanifah (may Allah have mercy on him) said: when a man says "this land of mine is alms," naming its place and boundaries without more, he ought to give alms of its corpus to the poor and needy, or sell it and give alms of its price to the needy: it is not a waqf, and this is our doctrine. He was asked: what of "this land of mine is alms for the needy"? He said: this and the first case are the same: it is Abu Hanifah's view and ours. He was asked: is there a difference between "alms for the needy" and "alms" alone? He said: no, the two are the same: every alms not attached to anyone is for the needy. He was asked: what of a man who says "this land of mine (naming its boundaries and place) is mawqufah," without more, little or much? He said: it is neither alms nor waqf according to Abu Hanifah and us; according to Abu Yusuf, if he says "this land of mine is mawqufah" without more, it is for the poor: his word "mawqufah" is a comprehensive term for the waqf and the poor, and it becomes a waqf for the needy: this is Uthman al-Batti's view. He was asked: why did you say that if he says "this land of mine is a waqf" without more the waqf is void, contrary to Abu Yusuf? He said: because the waqf may be for the rich and the poor, and he did not name which: therefore I invalidated it.
Ibn al-Humam (may Allah have mercy on him) said: "mawqufah" alone: valid only according to Abu Yusuf, for he makes it, by this word alone, a waqf for the poor, and this is Uthman al-Batti's view; and as it designates a specific destination, the poor, its being perpetual becomes necessary, the purpose of the poor never lapsing. As-Sadr ash-Shahid said: the shaykhs of Balkh give fatwa according to Abu Yusuf's view, and we give fatwa by it too, on account of custom; and hereby is repelled Hilal's objection to Abu Yusuf, that the waqf may be for the rich and the poor without specification, and so lapses: when custom directs it to the poor, it is as if they were named explicitly. "Mawqufah for the poor": valid even according to Hilal, the ambiguity having vanished by naming the poor, unlike "mahbusah," or "habsan": were there in "habsan" such usage, it should have to be like "mawqufah". Likewise if he says "for the sabil": if they recognized it as a perpetual waqf for the poor, so it is, otherwise he is asked: if he says "I intended the waqf," it becomes a waqf, his word admitting it (Sharh Fath al-Qadir, 6/202 ; Al-Bahr ar-Ra'iq, 5/205-206). In Al-Ishaf likewise: if he says "I made a waqf of this land of mine," or "I made it mawqufah," without more, it is permitted with Abu Yusuf and becomes a waqf for the poor, and the shaykhs of Balkh gave fatwa with it, upon it being the fatwa: for his words "I made a waqf" require its removal to Allah (exalted is He) then to His deputy, the poor, which requires perpetuity: there is thus no need to mention it, like manumission. "I made a waqf of this land of mine for Zayd's child," or named a group by name: not valid even with Abu Yusuf, for designating the beneficiary prevents intending other than it, unlike not designating, which makes it a waqf for the poor; do you not see the difference between "this land of mine is mawqufah" and "mawqufah for my child"? He validated the first, not the second, for the unrestricted "mawqufah" turns to the poor by custom: when he mentioned the child it became restricted, so the custom no longer remains; it is hereby apparent that their disagreement over requiring the mention of perpetuity or not is only over stating it explicitly or stating its equivalent, such as the poor and the like; as for perpetuity in meaning, it is a condition by consensus upon the sound view, stated by the verifying shaykhs (may Allah have mercy on them) (Al-Ishaf, 16-17).
The jurists stipulated several conditions for the endower of the waqf, among which are the following: first, that the endower be capable of donation: the waqf being among donations, capacity for them is therefore required of him. This capacity is realized as follows: first, that the endower be a legally accountable person (mukallaf), that is, mature and sane: the waqf of the child and the insane is not valid by consensus of the jurists, for the waqf is among harmful acts, being the removal of ownership without compensation, and the child and the insane are not among those capable of harmful acts: their gift, alms, manumission and the like are therefore not valid either (Bada'i' as-Sana'i', 6/219 ; Al-Bahr ar-Ra'iq, 5/202 ; Al-Ishaf, p. 10 ; Majma' al-Anhar, 2/567 ; Ad-Durr al-Mukhtar, 4/430 ; Al-Hindiyyah, 2/352 ; Ash-Sharh al-Kabir with the hashiyah of ad-Dasuqi, 5/457, 490-491 ; Sharh Mukhtasar Khalil, 7/102-103 ; Mughni al-Muhtaj, 3/453 ; Nihayat al-Muhtaj, 5/411-412 ; Kanz ar-Raghibin, 3/239 ; An-Najm al-Wahaj, 5/454 ; Ad-Dibaj, 2/515 ; Hashiyat al-Bayjuri, 2/88 ; I'anat at-Talibin, 3/297 ; Kashshaf al-Qina', 4/293 ; Sharh Muntaha al-Iradat, 4/329). Next, that the endower be free: the waqf of the slave is not valid, for it is a removal of ownership and the slave is not among the people of ownership, whether authorized or interdicted, for this is not of trade nor of its necessities: the authorized one does not therefore acquire ownership of it, as he does not acquire the alms, the gift and the manumission.
Third, that he be choosing freely: the waqf of the coerced person (mukrah) is not valid, as the Malikis, the Shafi'is and the Hanbalis stated explicitly, for in a state of coercion he has neither correct expression nor capacity for donation or other than it, his word and act being, by coercion, vain utterance; and this is also what the Hanafis' words require.